Understanding and Calculating Alimony in Texas

If you're getting divorced in Texas, you or your spouse might be requesting "spousal maintenance" (alimony). If so, you probably have questions about how that works. Who qualifies to receive maintenance payments? How long can they last? Can the order be changed down the road? This article will provide some answers to those and other questions about spousal maintenance in Texas.

Who Qualifies for Spousal Maintenance in Texas?

Either spouse may request spousal maintenance. But Texas law has strict limitations on who may actually qualify to receive the support.

Qualifying for maintenance in Texas is a two-step process. First, any spouse seeking maintenance (the "dependent spouse") must prove that they won't have enough property to provide for their minimum reasonable needs after the divorce.

If they meet that requirement, they must then also prove that at least one of the following circumstances exists:

• the couple have been married for at least ten years, and the dependent spouse lacks the ability to earn enough income to meet basic needs
• the dependent spouse can't earn enough to be self-supporting because of an incapacitating physical or mental disability
• the dependent spouse has custody of a child (born to the couple) who requires substantial care and personal supervision because of a mental or physical disability, and that condition prevents the parent from earning enough income to meet minimum reasonable needs, or
• the other spouse was convicted of an act of family violence against the dependent spouse or the dependent spouse's child while the divorce was pending or within two years before either spouse filed the divorce papers.

In the case of a long-term marriage when a spouse claims to lack the ability to earn sufficient income to meet minimum needs (without any of the other qualifying circumstances), the law presumes that spousal maintenance isn't warranted unless that spouse can prove they've diligently tried to earn enough, or to develop the skills needed to do so, while the couple were separated and while the divorce was pending.

(Tex. Fam. Code §§ 8.051, 8.053 (2024).)

When a spouse claims to be unable to earn enough because of a child's disability, that parent doesn't necessarily need to have sole or even primary physical custody. In one Texas case, for instance, the parents alternated weeks with their child, who required constant parental attention because of a seizure disorder. The father was able to work at home when he had the child, but the mother hadn't been able to find an adequate job that would allow her to do that or to work every other week. A Texas apeals court affirmed the judge's award of spousal maintenance to the mother under those circumstances. (Yarbrough v. Yarbrough, 151 S.W.3d 687 (Tex. Ct. App. 2004).)

How Texas Judges Decide on the Amount of Spousal Maintenance

Once a spouse has proved the need for maintenance, the judge must then decide how much the payments should be and how long they should last. Before making that decision, the judge must weigh all of the relevant circumstances, including:

• both spouses' ability to provide for their minimum reasonable needs independently, in light of their financial resources after the divorce is final (and after paying child support if that's applicable)
• how long the marriage lasted
• the dependent spouse's age, employment history, earning ability, and physical and emotional condition
• each spouse's current education and employment skills, as well as one spouse's contribution to the other's education, training, or earning power
• a spouse's contribution to the marriage as a homemaker
• how long it will take the dependent spouse to get the education or training needed to become self-supporting, and the extent to which that training is available and feasible
• whether either spouse wasted, concealed, destroyed, or otherwise disposed of any community property or other property the spouses held in common
• any property that each spouse brought to the marriage
• whether either spouse was guilty of misconduct during the marriage, including adultery and cruelty toward the other spouse, and
• any history or pattern of family violence, which can include threats and attempts at violence, as well as child sexual abuse.

(Tex. Fam. Code §§ 8.052, 71.004 (2024).)

Are There Limits on the Amount of Spousal Maintenance in Texas?

Unlike most other states, Texas law limits the amount of spousal maintenance that judges may award. Monthly payments may not exceed $5,000 or 20% of the supporting spouse's average monthly gross income, whichever is less.

Monthly gross income includes income from all sources except:

• Social Security retirement benefits
• Supplemental Security Income (SSI) benefits
• workers' compensation and disability benefits, including for disability connected to military service
• benefits paid under federal public assistance programs, including Temporary Assistance for Needy Families (TANF)
• payments for a child's foster care, and
• return of principal or capital and accounts receivable.

(Tex. Fam. Code § 8.055(a-1)(2) (2024).)

Does Texas Have an Alimony Calculator?

Unlike with child support, Texas doesn't have a formula for calculating spousal maintenance. That's left up to the judge, based on the legal limits and the judge's consideration of the particular circumstances in the case (as discussed above). You might find websites with so-called alimony calculators for Texas, but they don't account for those circumstances. So the calculators won't actually tell you how much a judge might order in your case.

Can You Get Alimony While Your Divorce Is in Progress?

A judge may award temporary spousal support while the divorce is in progress. (Tex. Fam. § 6.502(a)(2) (2024).)

Ordinarily, the goal of temporary support is to maintain the spouses' financial status quo until their divorce is final. Of course, that's not always possible, especially for spouses who have separated before or during their divorce, because it's more expensive to maintain two households than a shared one. But judges will look at the couple's financial circumstances and try to do what's fair.

How Long Does Spousal Maintenance Last in Texas?

Temporary spousal support typically lasts until the divorce is final.

As for post-divorce spousal maintenance, Texas law sets caps on how long the payments may last, depending on the length of the marriage. The maximum durations are:

• five years, when the spouses were married more than 10 years but less than 20 years, or they were married less than 10 years and the dependent spouse is eligible for maintenance because of family violence (as seen above)
• seven years, if the spouses were married for 20-30 years, or
• ten years, after marriages of 30 years or more.

Judges may order maintenance for a shorter period of time than the maximum allowed. In fact, judges are required to limit maintenance to the shortest period that the dependent spouse will need in order to become minimally self-supporting (earnomg enough to cover minimum reasonable needs). However, the law allows an exception to that rule when there's a "compelling" obstacle to the goal of self-support, including:

• a physical or mental disability, or
• the spouse's duties as the custodian of an infant or young child of the marriage.

(Tex. Fam. Code § 8.054 (2024).)

Does Remarriage or Cohabitation Affect Spousal Maintenance?

Under Texas law, spousal maintenance will end when the dependent spouse remarries or is living with a romantic partner on a continuing basis. (Tex. Fam. Code § 8.056 (2024).)

Can Couples Agree on Spousal Maintenance?

You and your spouse always have the option of agreeing whether one of you will pay spousal maintenance and, if so, how much the payments will be and how long they'll last. You'll need to submit your agreement to the judge for approval, so that it can be made part of your divorce decree. But judges generally approve these agreements as long as they appear fair.

Paying and Collecting Spousal Maintenance

Typically, judges order spousal maintenance to be paid through an income withholding order. The supporting spouse's employer will deduct the payments from the spouse's paycheck and send the money directly to the dependent spouse or to a state disbursement unit, which will then forward the payments to the recipient.

When a maintenance order was based on the couple's approved agreement, the judge may order income withholding—but only up to the maximum amount and duration allowed under Texas law (as discussed above). So if you and your spouse agreed to maintenance payments that go beyond those limits, the income withholding order won't include the excess amounts or the payments that are due after the duration limits.

Income Withholding to Enforce Alimony Orders

If your original maintenance order didn't provide for income withholding and you haven't been receiving payments on time (or at all), you may go back to court and request a withholding order for current payments as well as for the overdue amounts ("arrearages"). (Tex. Fam. Code §§ 8.101, 8.102 (2024).

Using Contempt to Enforce Alimony

Texas law also allows another option if you're trying to enforce alimony: You may file a motion (written legal request) with the court, requesting that a judge hold your ex in contempt of court for failing to pay maintenance under the judge's order or your approved agreement.

When faced with contempt charges, supporting spouses may defend themselves by proving that they:

• weren't able to pay the amount of maintenance in the order
• tried to borrow the money needed to pay the maintenance
• didn't have property that could be used to raise the money (such as by selling it or taking out a mortgage), and
• didn't know of any other source for borrowing or legally raising the money.

If the judge finds that the supporting spouse is guilty of contempt and issues a judgment for the amount of the arrearages, the dependent spouse may then use any of the legal methods for enforcing debts owed under a money judgment. However, as with income withholding, Texas judges may not use contempt to enforce any part of alimony agreements that exceed the legal maximum amounts and duration.

(Tex. Fam. Code § 8.059 (2024)

Can You Change a Spousal Maintenance Order in Texas?

If you want to change your existing spousal maintenance, you'll need to demonstrate that, since the date of the existing order, there's been a change in circumstances that's both substantial and material—meaning that it affects the proper amount or duration of alimony under Texas law.

The changed circumstances may include the factors (discussed above) that judges must consider when they're making initial decisions about the amount and duration of spousal maintenance. For example, the supporting spouse may have become permanently disabled, or the dependent spouse may have come into a substantial sum of money that decreases or eliminates the need for maintenance.

Even if you meet the changed-circumstances requirement, Texas law has several restrictions on alimony modifications:

• Judges may not increase the amount or duration of the original maintenance order. So you may only seek a modification that decreases or terminates alimony.
• A judge may not award alimony after a divorce is final to a spouse who didn't receive such an award in the divorce, even if that spouse later became disabled.
• An alimony modification may not apply retroactively. The modified order will apply only to payments that were due after a spouse filed the request.

(Tex. Fam. Code § 8.057 (2024).)

Taxes and Alimony

For all post-2018 divorces, the federal Tax Cuts and Jobs Act eliminated any tax deduction or income reporting requirements for alimony. That means supporting spouses may not claim deductions for those payments on their federal income tax returns, and dependent spouses don't have to report the payments as income. If you were divorced before 2019, however, you may continue to deduct any alimony that you're still paying, and you must continue to report as income any maintenance payments you're still receiving.

If you're negotiating an agreement about spousal maintenance in your divorce, you should take these tax rules into account.

Getting Help With Alimony

If you want to take advantage of the time- and cost-saving benefits of an uncontested divorce, but you're having trouble agreeing with your spouse about alimony or any of the other legal issues involved in ending a marriage, divorce mediation could help you resolve your differences.

But if mediation doesn't work (or isn't appropriate in your situation, such as when your relationship has involved domestic violence or an imbalance of power), it may be time to consult with a family lawyer who can evaluate your case and explain the best way forward.